Pittman v. McKinney

Court of Appeals of Georgia

Pittman v. McKinney

217 S.E.2d 446, 135 Ga. App. 192, 1975 Ga. App. LEXIS 1612

CourtCourt of Appeals of Georgia

DecidedJune 18, 1975

Docket50723

StatusPublished

Cited by9 cases

This text of 217 S.E.2d 446 (Pittman v. McKinney) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pittman v. McKinney, 217 S.E.2d 446, 135 Ga. App. 192, 1975 Ga. App. LEXIS 1612 (Ga. Ct. App. 1975).

Pincite

Opinion

Webb, Judge.

1. The Civil Practice Act governs the procedure "in all courts of record. . .” CPA § 1 (Code Ann. § 81A-101).

2. In cases involving more than $300, the Civil Court of Fulton County is a court of record. Cole v. Cates, 113 Ga. App. 540, 542 (1) (149 SE2d 165); Estes Heating &c. Co. v. McGuire, 113 Ga. App. 800 (1) (149 SE2d 831); Lymon v. Hollywood Fashions, Inc., 126 Ga. App. 627, 628 (1) (191 SE2d 473).

3. Where a provision of a special Act establishing a court of record conflicts with a provision of the Civil Practice Act, the latter controls. Gresham v. Symmers, 227 Ga. 616 (2, 3) (182 SE2d 764); Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171 (176 SE2d 604); Crosby v. Dixie Metal Co., 124 Ga. App. 169 (183 SE2d 59); Lee v. G.A.C. Finance Corp., 130 Ga. App. 44 (202 SE2d 221); National Health Services v. Townsend, 130 Ga. App. 700 (204 SE2d *193 299); Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49 (207 SE2d 567); Yeargin v. Burleson, 132 Ga. App. 652 (209 SE2d 99) and cits.

Argued June 2, 1975 Decided June 18, 1975. Richard K. Greenstein, for appellant. Cobb, Blandford & Werbin, Samuel N. Werbin, for appellee.

4. CPA § 55 (a) (Code Ann. § 81A-155 (a)) and Rule 10 of the Rules of the Civil Court of Fulton County require that damages be proved before a jury in actions ex delicto which are in default. Ga. L. 1913, pp. 145, 165, § 39, as amended, providing that a defendant who fails to demand a jury trial in the Civil Court of Fulton County on or before the appearance day is deemed to have waived a jury trial, is inconsistent with CPA § 55 (a) and must yield thereto. Since the record here shows on its face that the default judgment on plaintiffs ex delicto claim was entered without damages having been proved before a jury, the judgment is void on its face and the trial court erred in denying defendant’s motion to vacate that judgment.

Centennial Equities Corp. v. Hollis, 132 Ga. App. 44 (207 SE2d 573) does not require a different result, since it was there stipulated that the in personam (money) judgment taken by default was void, leaving only a special lien upon the property by default.

Judgment reversed.

Bell, C. J., and Marshall, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Webb, Judge.

1. The Civil Practice Act governs the procedure "in all courts of record. . .” CPA § 1 (Code Ann. § 81A-101).

2. In cases involving more than $300, the Civil Court of Fulton County is a court of record. Cole v. Cates, 113 Ga. App. 540, 542 (1) (149 SE2d 165); Estes Heating &c. Co. v. McGuire, 113 Ga. App. 800 (1) (149 SE2d 831); Lymon v. Hollywood Fashions, Inc., 126 Ga. App. 627, 628 (1) (191 SE2d 473).

3. Where a provision of a special Act establishing a court of record conflicts with a provision of the Civil Practice Act, the latter controls. Gresham v. Symmers, 227 Ga. 616 (2, 3) (182 SE2d 764); Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171 (176 SE2d 604); Crosby v. Dixie Metal Co., 124 Ga. App. 169 (183 SE2d 59); Lee v. G.A.C. Finance Corp., 130 Ga. App. 44 (202 SE2d 221); National Health Services v. Townsend, 130 Ga. App. 700 (204 SE2d *193 299); Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49 (207 SE2d 567); Yeargin v. Burleson, 132 Ga. App. 652 (209 SE2d 99) and cits.

Argued June 2, 1975 Decided June 18, 1975. Richard K. Greenstein, for appellant. Cobb, Blandford & Werbin, Samuel N. Werbin, for appellee.

4. CPA § 55 (a) (Code Ann. § 81A-155 (a)) and Rule 10 of the Rules of the Civil Court of Fulton County require that damages be proved before a jury in actions ex delicto which are in default. Ga. L. 1913, pp. 145, 165, § 39, as amended, providing that a defendant who fails to demand a jury trial in the Civil Court of Fulton County on or before the appearance day is deemed to have waived a jury trial, is inconsistent with CPA § 55 (a) and must yield thereto. Since the record here shows on its face that the default judgment on plaintiffs ex delicto claim was entered without damages having been proved before a jury, the judgment is void on its face and the trial court erred in denying defendant’s motion to vacate that judgment.

Centennial Equities Corp. v. Hollis, 132 Ga. App. 44 (207 SE2d 573) does not require a different result, since it was there stipulated that the in personam (money) judgment taken by default was void, leaving only a special lien upon the property by default.

Judgment reversed.

Bell, C. J., and Marshall, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

217 S.E.2d 446, 135 Ga. App. 192, 1975 Ga. App. LEXIS 1612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittman-v-mckinney-gactapp-1975.

Opinion

Related

Cite This Page — Counsel Stack